The Unsettling of the West: How Indians Got the Best Water Rights

Authors

David H. Getches, University of Colorado School of Law

Abstract

A single, century-old court decision affects the water rights of nearly everyone in the West. The Supreme Court's two-page opinion in Winters v. United States sent out shock waves that reverberate today. By formulating the doctrine of reserved water rights, the Court put Indian tribes first in line for water in an arid region. Priority is everything where water law typically dictates that the senior water rights holder is satisfied first, even if it means taking all the water and leaving none for anyone else. In the West, water rights belong to "prior appropriators." The earliest users of water secure legal rights to continue using water, suprior to the rights of all who come later. So when there is not enough water for everyone, users are served in order of their priority, with the latest users bearing the full impact of shortages. Winters held that the Fort Belknap Reservation in montana had rights superior to their non-Indian neighbors who had begun using water first. The Court's rationale was that the very creation of the Fort Belknap Reservation out of the much larger territory ceded by the tribe effectively "reserved" the tribes future right to use water. The decision threatened the water uses of the white settlers near Fort Belknap and, as precedent, it profoundly threatened to disrupt the expectations of all water-using neighbors of reservations where water might be used someday. In the real world of water use, though, Fort Belknap and other reservations still despair of the lack of water. In his probing history, Indian Reserved Water Rights, John Shurts concludes that the Winters doctrine of reserved water rights is "perhaps the most potent force at the command of western tribes in their attempt to protect their lives, resources, and society" (p. 124). Nevertheless, he finds the Supreme Court's decision that created such an asset to be less remarkable than other historians have indicated. He uses original historical research to document how "the litigation and its outcome fit well within the existing legal context and into on-going efforts at water development in the Milk River valley" where it arose (p. 4). The book explains that the Winters decision was not more controversial locally because some non-Indian neighbors actually gained from the outcome. By telling a new and fuller story, Shurts also corrects the illusion that prior appropriation was so entrenched at the time of the case that lawyers and courts would not consider applying any other rule. He points out that in some quarters of the West other approaches to water allocation were still being debated. He also presents several examples of how the doctrine was, contrary to others' observations, a serious topic of government activity in the years following the decision.

Recommended Citation

David H. Getches, The Unsettling of the West: How Indians Got the Best Water Rights, 99 Mich. L. Rev. 1473 (2001).
Available at: https://repository.law.umich.edu/mlr/vol99/iss6/14